Is there a legal right to free choice of ethno-racial identity? Legal and political difficulties in defining minority communities and membership boundaries

Pap, András László (2015) Is there a legal right to free choice of ethno-racial identity? Legal and political difficulties in defining minority communities and membership boundaries. Columbia Human Rights Law Review, 46 (2). pp. 153-232.

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Abstract

"Consider the following paradox: while sociologists, anthropologists, constitutional scholars, philosophers and policy makers may endlessly dwell on the difficulty of benchmarking or defining membership criteria for minorities, and a number of international human rights commitments are interpreted in a way which suggest that they recognize the free choice of identity, hate crimes perpetrators are rarely puzzled by the complexity of identity formation of their victims. When it comes to the ill-treatment of members of various minority groups, categorization, definition making, or classification of those minority groups is never an issue for the discriminating party. In fact, these conceptual ambiguities may even worsen protections provided for the victimized group, as they make it difficult to define or identify target groups and beneficiaries. This essay investigates the constitutional dilemma that characterizes all ethno-racial minority protection mechanisms, be they remedies, demands for collective ethno-cultural recognition, systems of preferential treatment, or protections offered from racially motivated violence or discrimination. All of these mechanisms need to institutionalize some kind of a definition for the targeted groups, and/or membership requirements within the community to be effective. The failure to do so seriously impedes the prospects for efficient legal protection, exemplified by the documented practice of “ethno-corruption”, which will be discussed later in this paper, and the reluctance to apply anti-discrimination and hate crime laws, in part due to concerns over data collection in Eastern Europe and elsewhere. Citizens in each community, as well as members of the international community, arguably have a right to properly identify the beneficiaries of affirmative action and minority rights regimes because of the budgetary burdens of these policies—not to mention the need for sustainable and transparent policy-making and enforcement schemes. "

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